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Filed:

June 28, 2012

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 11-3
(4:02-cr-00992-JFA-1; 4:08-cv-70072-JFA)

UNITED STATES OF AMERICA,


Plaintiff Appellee,
v.
CHADRICK EVAN FULKS,
Defendant Appellant.

O R D E R

The Court amends its opinion filed June 26, 2012, as


follows:
On page 5, third line of text -- South Carolina is
corrected to read North Carolina.
For the Court By Direction

/s/ Patricia S. Connor


Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHADRICK EVAN FULKS,
Defendant-Appellant.

No. 11-3

Appeal from the United States District Court


for the District of South Carolina, at Florence.
Joseph F. Anderson, Jr., District Judge.
(4:02-cr-00992-JFA-1; 4:08-cv-70072-JFA)
Argued: March 20, 2012
Decided: June 26, 2012
Before WILKINSON, KING, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Wilkinson and Judge Agee joined.

COUNSEL
ARGUED: Billy Horatio Nolas, Amy Gershenfeld Donnella,
FEDERAL COMMUNITY DEFENDER OFFICE, Philadelphia, Pennsylvania, for Appellant. Thomas Ernest Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: William N. Nettles,

UNITED STATES v. FULKS

United States Attorney, Robert F. Daley, Jr., Assistant United


States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina; Lanny A. Breuer,
Assistant Attorney General, Greg D. Andres, Acting Deputy
Assistant Attorney General, Scott N. Schools, Associate Deputy Attorney General, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.

OPINION
KING, Circuit Judge:
Having pleaded guilty in the District of South Carolina to
all eight counts of a superseding indictment, Chadrick Evan
Fulks was, on the recommendation of a jury, sentenced to the
death penalty. The capital sentence was imposed on Fulkss
convictions of Counts One and Two of the superseding indictment, respectively, carjacking resulting in death, in contravention of 18 U.S.C. 2119(3), and kidnapping resulting in
death, as proscribed by 18 U.S.C. 1201. The federal charges
in South Carolina related to the abduction and murder of
Alice Donovan on November 14, 2002, in the course of a
multistate crime spree engineered by Fulks and his cohort,
Brandon Basham, following their escape from a Kentucky
jail. Three days prior to Donovan being carjacked, kidnapped,
and killed, Samantha Burns suffered the same fate in West
Virginia at the hands of Fulks and Basham.
The district court sentenced Fulks on December 20, 2004,
and, on appeal, we affirmed his sentence in all respects. See
United States v. Fulks, 454 F.3d 410 (4th Cir. 2006).1 The
Supreme Court, on June 25, 2007, denied Fulkss petition for
certiorari. On June 23, 2008, in accordance with 28 U.S.C.
Our prior opinion on direct appeal detailed the grim events culminating
in the demise of the two women, and, except as necessary to provide context for the proceeding now before us, we will not repeat them here.
1

UNITED STATES v. FULKS

2255, Fulks filed a motion in the district court seeking to


vacate his conviction and sentence, and thereupon to be tried
anew.2 The motion, as amended, encompassed thirty-three
discrete claims for relief, with respect to which the court conducted an evidentiary hearing beginning on February 22,
2010, and concluding on March 1, 2010. See 28 U.S.C.
2255(b).
Upon due consideration, the district court issued an exhaustive memorandum opinion and order rejecting each proffered
claim. See United States v. Fulks, No. 4:02-cr-00992 (D.S.C.
Aug. 20, 2010) (the "Opinion").3 The court nonetheless
granted a certificate of appealability as to Claims 1 through 29
and Claim 33.4 From that order and a subsequent one entered
on January 13, 2011, denying his motion to alter or amend the
judgment, see Fed. R. Civ. P. 59(e), Fulks timely filed a
notice of appeal on March 2, 2011, maintaining that the disA federal prisoner may move to "vacate, set aside or correct" a sentence that is, inter alia, "not authorized by law or otherwise open to collateral attack," or to request appropriate relief if "there has been such a denial
or infringement of the constitutional rights of the prisoner as to render the
judgment [of conviction] vulnerable to collateral attack." 28 U.S.C.
2255(a), (b). In the typical proceeding, of which Fulkss is one, the
motion is required to be made within one year of "the date on which the
judgment of conviction becomes final." 2255(f)(1). Having been filed
two days prior to the first anniversary of the date on which the Supreme
Court declined review of his direct appeal, Fulkss 2255 motion was
timely.
3
The unpublished Opinion is found at J.A. 100123-297 (Citations herein
to "J.A. ___" refer to the contents of the Joint Appendix filed by the parties to this appeal.)
4
See 28 U.S.C. 2253(c)(1)(B), -(c)(2) (confining 2255 appeals to
issues certified by federal justice or judge as presenting "a substantial
showing of the denial of a constitutional right"). The August 20, 2010
"Order Denying Petition for Relief Under 28 U.S.C. 2255" replaced the
courts August 3, 2010 order, which was vacated pending filing of the
official transcript memorializing the evidentiary hearing. On August 25,
2010, the district court entered a one-page clarifying order with respect to
its ruling on the certificate of appealability.
2

UNITED STATES v. FULKS

trict court erred in denying him relief on seven of his claims.


We possess appellate jurisdiction over the judgment against
Fulks pursuant to 28 U.S.C. 1291, 2253(a), and 2255(d).
For the reasons that follow, we reject his assignments of error
and affirm.
I.
Six of Fulkss seven live claims allege that his lawyers at
the sentencing proceeding and on direct appeal were constitutionally ineffective. At the outset, Claim 7 criticizes counsels
decision to have Fulks give an inculpatory statement to the
FBI, with no prior stipulation of use or negotiated plea agreement in place. Fulks subsequently entered a guilty plea, likewise without reservation, and he contends, through Claim 28,
that the tactic unreasonably ceded valuable rights with no
commensurate benefit. Though it was hoped that his plea
would indicate that Fulks had accepted responsibility for his
actions, he argues that counsel should have deemed such hope
forlorn, unlikely to carry any weight with the sentencing jury.
That jury, according to Fulks, was unconstitutionally predisposed to recommend death. The jurys predisposition, the
argument goes, was the result of counsel botching the voir
dire (Claim 15), neglecting to discover and follow up on a
jurors failure to answer an important part of her questionnaire (Claim 16), and choosing to seat three venirepersons the
defense perceived hostile to Fulks, rather than exercising
peremptory challenges (Claim 17).
Insofar as the jurors were willing to keep an open mind and
consider evidence in mitigation of the death penalty, Claim 5
asserts that they were impermissibly hindered in that task by
one of the district courts instructions on that topic. Though
counsel objected to the given instruction and preserved the
putative error for potential review, Fulks maintains that not
pursuing the issue on direct appeal constituted ineffective
assistance.

UNITED STATES v. FULKS

Finally, in Claim 19, Fulks mounts a due process challenge


against the governments use of statements uttered by Basham
to the Brunswick County, North Carolina, Sheriff. Basham
made the statements while assisting the Sheriff and others in
locating Donovans remains, and the government referred to
them in both Fulkss and Bashams proceedings. Fulks
accuses the government of conducting itself in a fundamentally unfair fashion by portraying the statements in different
and inherently inconsistent ways, depending on which defendant was under jury scrutiny.
II.
We address each of the above contentions in turn, reviewing de novo the district courts conclusions of law underlying
its denial of Fulkss 2255 motion. See United States v. Stitt,
552 F.3d 345, 350 (4th Cir. 2008). The courts findings of fact
derived from the evidence adduced at its hearing are reviewed
for clear error. Id.
III.
A.
The Sixth Amendment to the Constitution secures to all
criminal defendants "the right to the effective assistance of
counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984)
(citation omitted). A prisoner seeking collateral relief from his
conviction or sentence under Strickland "must demonstrate
both that counsels performance was deficient, and that the
defense was thereby prejudiced." Tice v. Johnson, 647 F.3d
87, 102 (4th Cir. 2011). In view of the latitude customarily
afforded criminal defense lawyers in formulating strategy,
deficient performance will not be adjudged unless, "in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. We are thereby con-

UNITED STATES v. FULKS

strained to "indulge a strong presumption" that counsel


performed reasonably. Id. at 689.
In the event that the presumption of reasonable performance is successfully rebutted, relief remains unavailable "if
the error had no effect on the judgment." Strickland, 466 U.S.
at 691. The defendant must therefore demonstrate "a reasonable probability that, but for counsels unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694. The analysis "requires
the court deciding the ineffectiveness claim to consider the
totality of the evidence before the judge or jury." Elmore v.
Ozmint, 661 F.3d 783, 858 (4th Cir. 2011) (quoting Strickland
at 695). In evaluating the evidence, however, "[w]e are not
bound . . . to view the facts in the light most favorable to the
prosecution," Tice, 647 F.3d at 111, and the requisite prejudice may be established short of showing that adequate performance "would have resulted ultimately in the defendants
acquittal," id. (quoting Kyles v. Whitley, 514 U.S. 419, 434).
As dictated by Kyles and Tice, then, Fulks may prevail on the
prejudice prong though he be unable to show that competent
counsel would have secured for him a life sentence, rather
than death.
1.
Fulkss statement to the FBI on April 21, 2003, about five
months after his arrest, was made ostensibly because he
"wanted to tell the truth and help . . . locate the body of Alice
Donovan." J.A. 201893. The statement related, in pertinent
part: (1) Basham carjacked Donovans BMW and kidnapped
her in a parking lot while Fulks circled in another stolen vehicle; (2) Basham carried a revolver, but Fulks was unarmed;
(3) Basham raped Donovan in the cars backseat and pressured a reluctant Fulks to do the same; (4) Basham taped
Donovans wrists afterward; (5) upon stopping at a secluded
area, Basham led Donovan into the woods while Fulks

UNITED STATES v. FULKS

waited; (6) at Donovans request, Fulks tried to dissuade


Basham from taking the gun into the woods, to no avail; (7)
Basham returned about twenty minutes later, carrying Donovans few remaining clothes; (8) Basham initially said that
Donovan had been tied up, but later that day admitted that he
had strangled her; (9) Basham talked about murdering another
woman two years prior and asked Fulks whether he had ever
killed anyone, to which Fulks responded in the negative; and
(10) during a later disagreement, Basham pointed the revolver
at Fulkss head. See id. at 201893-98.
Fulkss statement had no strings attached. It was not
exchanged for the promise of a reduced sentence; nor was it
given in the form of a limited-use proffer, as is sometimes
done in the course of negotiating a plea agreement. An expert
for Fulks, Andrea Lyon, opined at the 2255 hearing that the
gratuitous statement was an unreasonable choice without first
"get[ting] some kind of protection for him," J.A. 200951, or
"at the very minimum . . . the conversation itself [being] protected," id. at 200953. Lyon testified that, otherwise, "theres
nothing to gain for the defendant." Id. at 200952.
John Blume, the lead defense counsel, retorted that he did
not wish to subject Fulks to cross-examination by having him
testify at the sentencing trial, and that, through the statement,
Fulks "could get out his version of the events, which was that
he was not the actual killer, and then the government would
hopefully admit this at trial as Mr. Fulks version of the
offense." J.A. 200725-26. Blume insisted that he "didnt want
a proffer . . . we wanted the statement to be used" at trial, id.
at 200726, clarifying that "we wanted it to demonstrate . . .
acceptance of responsibility [and] . . . some true indicia of
remorse." Id. at 200727.
Blume acknowledged that having Fulks go through with the
statement committed the defense to the entry of a guilty plea
about one year later, on May 7, 2004, but that both decisions
were intended to achieve the "best case scenario" of avoiding

UNITED STATES v. FULKS

the death penalty. J.A. 200732. Blume "didnt see any credible defense or issue" that would lead to a verdict of not guilty.
Id. at 200729. Consistent with that view, Blume confronted
his client with the unvarnished truth, as he saw it: "You know,
Chad, they are going to find you guilty. And even if they
accept everything you say is true in your [statement], you are
guilty of the charged offenses. And I think the best chance to
try and save your life is for you to plead guilty." Id. at
200733.
The facts establishing Fulkss involvement in the events
leading to Donovans death were, as Blume astutely surmised,
beyond peradventure. Although there were no eyewitnesses to
the murder other than the principals, one of the prosecutors
submitted a sworn declaration that "[t]he investigation quickly
developed independent evidence implicating Fulks and
Basham in both murders [South Carolina and West Virginia],
and the evidence regarding the South Carolina murder was
particularly strong." J.A. 201956; see also Opinion 81
("Independently of his statement, Fulkss guilt was not subject
to any reasonable dispute."). The evidence was provided by
members of the culprits entourage who accompanied them
during portions of their escapades, police officers and ordinary citizens who encountered them along the way, and physical items such as surveillance videos and credit card records.
See J.A. 201956-58.
The compelling case against Fulks left his lawyers with little leverage for negotiation. Defense counsel engaged in
ongoing discussions with the government concerning Fulkss
willingness to cooperate, and, in particular, to assist the
authorities in locating Ms. Donovans body. The government
made clear at the outset that it "had no interest in receiving
that information under conditions that would not allow the use
of the information directly or derivatively," and it "insist[ed]
that information be provided without restriction." J.A.
201958.

UNITED STATES v. FULKS

The governments position was based in large part on the


strength of the case against Fulks and Basham, and it was
consistent with the prior rejection of Bashams proffer of
cooperation in exchange for a life sentence. Of note here, the
government turned down Basham at a time when the information derived from its investigation "was less extensive and the
evidentiary value of locating the remains was greater." J.A.
201959. There was, therefore, "no reason in April 2003 to
treat Fulks more favorably." Id. The uncontroverted evidence
in the record shows that the government had informed Fulks
that it would not negotiate a protected statement and, indeed,
that the government "would have foregone any interview of
Fulks rather than receive information from him that could not
be used against him." Id.
Nonetheless, according to defense expert Lyon, Fulks
should not have volunteered any statement, nor should Blume
have arranged for a guilty plea, regardless of the strength of
the governments case. Lyon testified that a competent
defense attorney would never do either absent an appropriate
concession from the prosecution, and she suggested that the
benefits cited by Blume supporting his strategy were largely
illusory. Lyon indicated that Fulks could have gotten his story
before the jurors through the mental health experts retained by
the defense, and she was dubious that a sentencing jury, on
the whole, would ever give a capital defendant any credit in
mitigation for pleading guilty. See J.A. 200951-64.
Lyons opinion as to the latter point appears to run counter
to a simulation conducted on Fulkss behalf by a jury consultant, the results of which were memorialized in a memorandum dated March 9, 2004. Therein, the consultant recorded
that several jurors in the mock proceeding "did find in fact
that Chads guilty plea was mitigating and remorseful." J.A.
201964. And, at the close of the actual sentencing trial, held
throughout June 2004, the jury unanimously found as a
mitigating factor that Fulks had pleaded guilty to the capital charges. See id. at 201816. Moreover, Lyons suggestion

10

UNITED STATES v. FULKS

that Fulks "testify" through his own witnesses ignores the


likelihood that the jurors would give his version of events
more attention and credence if relayed to them by a prosecution witness. Indeed, the government responded as Blume predicted, by calling one of the FBI agents who interviewed
Fulks to present his statement to the jury.
We conclude that, given the unpalatable hand the defense
team was dealt, having Fulks speak to the authorities and then
plead guilty were reasonable litigation tactics, though Blume
obtained no palpable quid pro quo from the government. Further, counsels approach engendered no prejudice at sentencing, there being little, if any, chance that the jury would have
made a different recommendation had Fulks instead stood
silent or if his guilt had been found instead of admitted. Insofar as Fulks ventures beyond sentencing prejudice to argue
that an acquittal was reasonably probable had the capital
charges gone to trial with no inculpatory statement in the
record, we readily reject that contention. In view of the totality of the evidence, we are confident that, under either strategy, the outcome of the guilt phase would have been the
same.
2.
a.
The parties engaged in jury selection from May 10-21,
2004, with Blume examining eight of the twelve jurors eventually seated. Lyon took strong issue with Blumes questioning, calling it "some of the worst voir dire I have ever read in
my life." J.A. 200969. Lyon scoffed that "theres just pages
and pages of him . . . making speeches at the jurors, and then
asking the juror to say yes or no to a question that gets lost
in the middle." Id. On August 4, 2004, at the outset of voir
dire in the Basham sentencing, the district court cautioned the
defense lawyers against taking the same tack as Blume had
several weeks previously:

UNITED STATES v. FULKS

11

You know from what you saw in the first goround that . . . I asked a juror the standard questions
under the Supreme Court decisions on deathqualified jurors[,] . . . ["]Do you have such strongly
held beliefs about the death penalty that you could
not set-aside those beliefs and conscientiously follow
the law as announced by the judge?["]
***
And, so, after I went through all of that, then Mr.
Blume got up and on several witness jurors, ["]Mr.
Juror, lets say you have a case where someone is
over 18, not under a mental disability, not acting
under duress, not acting in self-defense who commits
a murder. Would you give that person the death penalty?["] The juror said, ["]Yes, I would.["] And
every time I would have to then go back and say,
["]Now, Mr. Juror, you told me one thing, and you
told Mr. Blume something else, have you changed
your answer?["] And the juror would be confused
. . . [,] and almost every time the juror said, ["]Oh,
no, no, no, I didnt mean to tell Mr. Blume that. I
didnt understand him to ask me that question.["]
The result was, I think Mr. Blume really paid a
price with the jurors because it looked like he was
trying to trick them, to be honest with you. And I
just say that for [your] benefit. You need to decide
whether you are going to go down that same road or
not.
Id. at 400446-48.
Fulks posits that the jurys recommendation of death manifested its dislike of Blume. Squarely confronted with Fulkss
hypothesis, the district court thought the notion invalid,
announcing that it was "constrained to disagree with [the]

12

UNITED STATES v. FULKS

contention that Blumes questions to prospective jurors were


rambling, confusing, intimidating, or otherwise ineffective."
Opinion 116. The court continued, "[the] bald allegations that
the questions posed by Blume were improper, ineffective, or
offensive to jurors [are] unavailing." Id. at 116-17.
Having overseen the entirety of the jury selection process,
the district courts opportunity to gauge the effect of counsels
questions was unparalleled. The courts determination that
Blumes voir dire did not harm his clients case, derived from
its contemporaneous perception of the dialogue between the
jurors and counsel, is a finding of fact to which we cannot
ascribe clear error. See Patton v. Yount, 467 U.S. 1025, 1038
(1984) (explaining that presiding courts assessment of juror
bias or prejudice at voir dire is entitled to "special deference"
as "essentially one of credibility, and therefore largely one of
demeanor").
Although the district court appeared to express its disapproval of Blumes technique to Bashams lawyers, we do not
perceive its comments on that occasion as fundamentally
inconsistent with its finding here. The courts offhand observation that a lawyer was less than optimally effective in no
way mandates a conclusion that he was constitutionally ineffective. Furthermore, we highly doubt that the court would
have left the door open for Bashams counsel "to go down
that same road" if it believed the jury would be impermissibly
tainted as a result.
b.
Fulks contends that the jury that determined his fate was
not the fair and impartial factfinder mandated by the Constitution. For that, Fulks blames Blume, who allowed three jurors
to be seated notwithstanding an assessment that they were
unfavorably disposed to Fulkss cause. One of those jurors
was selected after neglecting to apprise the parties that her
first husband had been the victim of a murder. Fulks main-

UNITED STATES v. FULKS

13

tains that counsels failure to detect the omission was another


example of deficient performance substantially increasing the
likelihood that the jury would recommend a death sentence.
The defense team employed a common technique known as
the "Colorado Method" to rate potential jurors on a scale from
1 to 7, "with 1 being a juror who would never under any circumstances give death, and 7 being a juror who would always
give death." Opinion 114. Among the venirepersons examined
by Blume, with counsels composite rating in parentheses,
were Lisa Harvey (6.90), Richard Goehring (6.48), and Sylvia
Allison (6.10). The defense used their twenty-three peremptory strikes on others, the majority of whom had lower ratings, because Blume ascertained that the three he agreed to
seat presented the most promise for challenging on appeal the
district courts refusal to dismiss them for cause.
Question 42 of the Juror Questionnaire inquired of each
venireperson, "Have you or has any close friend or relative
been the victim of a crime, whether it was reported to law
enforcement authorities or not." J.A. 201837. An affirmative
answer required additional details in follow-up. Allison left
the question unanswered, though her newlywed husband had
been murdered in 1971. At the evidentiary hearing below,
Blume admitted the oversight: "I still dont know how we
missed it but we missed it." Id. at 200793.
We previously addressed both issues on direct appeal,
applying the governing principle that a person is disqualified
from a capital jury if voir dire reveals that he "will fail in
good faith to consider the evidence of . . . mitigating circumstances as the instructions require him to do." United States
v. Fulks, 454 F.3d 410, 427 (4th Cir. 2006) (quoting Morgan
v. Illinois, 504 U.S. 719, 729 (1992)). Put another way, the
district court need only have excluded those potential jurors
who "would uniformly reject any and all evidence of mitigating factors, no matter how instructed on the law." United
States v. Tipton, 90 F.3d 861, 878 (4th Cir. 1996). In a similar

14

UNITED STATES v. FULKS

fashion, because the court found that Allisons omission was


inadvertent and that she would not in any event have been
excused for cause, Fulks was required to demonstrate that she
was actually or impliedly biased in favor of imposing the
death penalty. See Fulks, 454 F.3d at 431-32.
We concluded that the district court had acted within its
broad discretion in declining to exclude any of the three jurors
for cause, and, in denying Fulkss motion for a new trial,
refusing to declare Allison unfit after the fact. Nothing has
changed in this 2255 proceeding, except that Fulks contends
that the abuse-of-discretion standard of review we applied to
these claims on direct appeal "is more stringent than the
Strickland reasonable probability standard applicable here."
Br. of Appellant 58. Fulks argues that inasmuch as we earlier
described the issue of whether Goehring should have been
green-lighted as perhaps being "close," Fulks, 454 F.3d at
428, the more exacting scrutiny required by Strickland tips the
scale and necessitates relief at this stage.
Fulkss argument misconstrues the relationship between the
direct and the collateral proceedings; the latter is not designed
to be a rehash of the former under a more defendant-friendly
standard. The inevitable upshot of our holding on direct
appeal that the district court had not abused its discretion with
respect to juror selection or the post-proceeding attempt at
disqualifying Allison was that the process had resulted in a
fair and impartial jury. With the Supreme Courts denial of
certiorari, that holding became, for all practical purposes, the
law of the case. Cf. Hodge v. Haeberlin, 579 F.3d 627, 643
(6th Cir. 2009) (noting Kentucky Supreme Courts "straightforward application of collateral estoppel" where Strickland
claim "relies on proof of an element already resolved on
direct review").
On collateral attack, our task is different. We may consider
under Stricklands prejudice prong whether there existed a
reasonable probability of a different result on the determina-

UNITED STATES v. FULKS

15

tion (or assumption) that counsel rendered deficient performance. See, e.g., Smith v. Spisak, 130 S. Ct. 676, 685 (2010)
(assuming, without deciding, that counsels performance was
inadequate, but nonetheless rejecting defendants Strickland
claim for lack of prejudice). Because we commence, however,
with the immutable premise that the jury in this case satisfied
the strictures of the Constitution, Fulks can under no circumstances demonstrate the necessary precondition for his claim,
i.e., that Blumes actions in selecting the jury strayed beyond
the bounds of reasonableness.
The most that Fulks can say is that Blume could have conceivably empaneled a marginally more sympathetic jury by
electing to seat different jurors in place of three that actually
served. That is not enough, however, to trigger an analysis of
whether such a hypothetical jury comprised in part of nine
of the same members who actually voted for death in this case
would have recommended a life sentence. See Delaware
v. Van Arsdall, 475 U.S. 673, 681 ("[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one."). A
conclusion in the affirmative could only be based upon rank
speculation, defying calculation of a reasonable probability.
3.
An issue that we did not address on direct appeal, though
preserved by objection at sentencing, was the propriety of one
of the district courts instructions on mitigation:
As to the mitigating factors asserted by the defendant, Mr. Fulks, in this case, the law provides that
there is, essentially, no limit on the number of factors or things that the jury may consider in mitigation. As to each of the factors submitted by the
defendant, and which I am about to list, you must,
essentially, engage in a two-step process in determining whether any one or more of them have been
proven.

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UNITED STATES v. FULKS

Specifically, you must first determine if the evidence


that you heard establishes the existence of the factor
by a preponderance of the evidence.
Secondly, if you determine that the factor has been
proven, you must determine whether the fact is mitigating, as I have defined that term for you. That is,
it tends to suggest that life in prison without parole
and not death is the appropriate punishment.
J.A. 303943. Fulks maintains that the courts "two-step"
instruction, insofar as it directed the jury to "determine
whether the fact is mitigating," invited the jurors to disregard
evidence that was indisputably mitigating, contrary to the
Supreme Courts admonition in Eddings v. Oklahoma, 455
U.S. 104 (1982). The Court in Eddings ruled that, consistent
with the view of the Eighth Amendment it expressed in
Lockett v. Ohio, 438 U.S. 586 (1978), a capital sentencing
entity may not "refuse to consider, as a matter of law, any relevant mitigating evidence." Eddings, 455 U.S. at 115. In light
of what Fulks perceives as the strength of the Eddings issue,
he contends that counsel was ineffective for not pressing it on
appeal.5
The circumstances confronted by the Supreme Court in
Lockett and Eddings are readily distinguishable from those at
bar. The statute at issue in Lockett permitted consideration of
only three mitigating factors, while, in Eddings, the trial court
Fulks maintains that the governments closing and rebuttal arguments
exacerbated the alleged error occasioned by the instruction, in that the
prosecutor suggested to the jury that the evidence of Fulkss upbringing
was of limited relevance because it did not cause the offense conduct, see
J.A. 303798-99, and because that conduct was relatively remote in time
from and not in direct retaliation for his abuse, see id. at 303899-900. We
note that no contemporaneous objection was made to the prosecutors
remarks. The remote possibility that we would have discerned plain error
in connection with this aspect of Fulkss claim precludes a conclusion
under Strickland that a different result on appeal was reasonably probable.
5

UNITED STATES v. FULKS

17

sentenced the defendant in the belief that it was barred from


considering his family history in mitigation. Plainly, the practical effect of the instruction in Fulkss case was different:
before a juror could determine that a proffered factor should
be given no mitigating weight, he or she had to at least evaluate it at the threshold. See United States v. Higgs, 353 F.3d
281, 327 (4th Cir. 2003) (observing that "the Constitution
only requires that the jury be allowed to consider evidence
that is proffered as mitigating"); see also United States v.
Basham, 561 F.3d 302, 337 (4th Cir. 2009) (instructing that
neither the Constitution nor laws of the United States "require
a capital jury to give mitigating effect or weight to any particular evidence" (citation omitted)). Unlike the situations in
Lockett and Eddings, the decisionmakers here were not
directed by law or influenced by misapprehension to stick
their respective heads in the sand and ignore the defendants
evidence.
Just the opposite is true. The challenged instruction
informed the jury that there was "no limit" on what it could
consider in mitigation, and the district court specifically
directed that "[a]ny juror persuaded that a mitigating factor
exists, must consider it in this case." J.A. 303944. That at
least one juror found thirty-two of forty-three proffered mitigating factors present in Fulkss case, with twenty-two being
found unanimously, bespeaks not of a jury whose discretion
and compassion were by any means impermissibly curtailed.
As with his claims pertaining to jury selection at sentencing, Fulkss assertion of ineffective appellate assistance fails
for want of a tenable premise. In each instance, counsels
actions or omissions having engendered no significant error,
deficient performance cannot be ascribed thereto.
B.
On the trip to locate Donovans body, a doe jumped in front
of the van in which Basham, his counsel, and several law

18

UNITED STATES v. FULKS

enforcement officers were riding. Basham remarked to Sheriff


Ronald Hewett, "You know, I could never even kill a deer and
here I have " before being abruptly stopped mid-sentence
by his attorney. J.A. 400543. Later, with the group debarked
at a cemetery, Basham showed Hewett through gestures how
Donovan had been strangled with a strap Basham said came
from a Liz Claiborne purse. Basham did not indicate whether
he or Fulks had performed the physical act of strangulation.
Basham then demonstrated how he had thrown the strap into
the nearby woods. See id. at 400210-11, 400572-73.
In the midst of his sentencing trial, after the jury had been
dismissed for the day, Fulks moved the district court to have
the hearsay "deer statement" admitted on the theory that
Basham had been on the verge of confessing he had personally ended Donovans life. The government opposed the statements admission on the ground that it was ambiguously
incomplete, and the court agreed that Basham could have finished the deer statement by saying "a number of things that
still inculpated Mr. Fulks," such as "I helped bury a dead
body," or "I held the woman down while she was killed." J.A.
400513. Minutes later during the same colloquy, while arguing provisionally for reciprocal admission of competing statements under the rule of completeness, counsel for the
government recalled Sheriff Hewetts suppression hearing testimony concerning the demonstration at the cemetery "how
Brandon Basham said that Chad Fulks took the purse strap
and strangled [Donovan]." Id. at 400517.
Subsequently, at Bashams trial, the government introduced
the deer statement and reminded the jury of it at closing, asking rhetorically, "What do you think he is thinking about?
Here I have smoked a joint? Here I have stolen a car?" J.A.
400648. On the heels of that argument, the government
referred to Sheriff Hewetts testimony concerning the incident
at the cemetery, recounting that Basham "didnt say I killed
Alice Donovan. No, he demonstrated it." Id. at 400649. A
moment later, however, the government described the inci-

UNITED STATES v. FULKS

19

dent in more general terms, characterizing Bashams demonstration as "how Alice Donovan was strangled." Id. at
400650-51.
We have previously acknowledged that, "[i]n some situations, the Due Process Clause prohibits the government from
presenting mutually inconsistent theories of the same case
against different defendants." Higgs, 353 F.3d at 326. A due
process violation may occur "if an inconsistency . . . exist[s]
at the core of the prosecutors cases against the defendants for
the same crime," id. (quoting Smith v. Groose, 205 F.3d
1045, 1052 (8th Cir. 2000)), or if "the evidence used at the
two trials is factually inconsistent and irreconcilable," id.
(quoting United States v. Paul, 217 F.3d 989, 998 (8th Cir.
2000)). According to Fulks, the governments approach to the
two trials was inconsistent at its core, entitling him to relief.
We disagree. Viewed in the context of the entirety of both
proceedings, the governments core theory was that Fulks and
Basham were equally culpable in Donovans murder and similarly deserving of the death penalty, regardless of which one
physically ended her life. For example, the government told
Fulkss jury that he and Basham "acted together as one in
concert with one another . . . . They could not have done
things that they did . . . without acting in unison." J.A.
303693. The story was the same at Bashams trial: "Their
actions, their conduct, their choices were made as a team.
Brandon Basham could not have carjacked and kidnapped
Samantha Burns or Alice Donovan without Chad Fulks. And
Chad Fulks could not have carjacked and kidnapped
Samantha Burns and Alice Donovan without Brandon
Basham. They are equally culpable." Id. at 400682.
In Higgs, we discussed the governments approach to the
separate trials of the titular defendant and his accomplice in
crime, Haynes. It was undisputed that Haynes was the triggerman in a triple homicide, but he argued that he was acting
under duress from Higgs. The government responded that

UNITED STATES v. FULKS

20

Hayness free will had not been overcome, which Higgs contended was inconsistent with the prosecutions argument at
his own trial, namely, that Higgs was the mastermind and
therefore more culpable. We rejected Higgss assertion of
core inconsistency:
The government argued precisely the same factual
predicate for Hayness and Higgss convictions, i.e.,
that Higgs retrieved the gun from his apartment,
drove the van to the murder scene, and handed the
gun to Haynes after the women got out of the vehicle
. . . . [T]he argument that Haynes was a "partner in
crime" with Higgs because he could have chosen not
to murder the women is not inconsistent with the
argument that Higgs was more culpable because he
brought the murder weapon to the scene and told
Haynes to do it. It was certainly not so inconsistent
as to amount to a due process violation.
353 F.3d at 327.
Likewise here, there was no material variance in the facts
proved to establish Donovans death at the hands of Fulks and
Basham. We are not unmindful that, in joint-action cases
where the ultimate perpetrator is in doubt, sentencing juries
may be less lenient with the defendant it perceives to have
fulfilled that role. Nevertheless, in light of the overall theme
of both Fulkss and Bashams trials (of which we have cited
only an example or two for illustrative purposes), we cannot
conclude that tangential inconsistencies relating to inferences
drawn from the undisputed evidence are, in this case, so serious as to constitute a violation of due process. This is particularly so when significant portions of the events resulting in the
alleged inconsistencies occurred outside the jurys presence.
We therefore agree with the district court that Fulks has
shown, "at best, an inconsistent argument concerning the
vagueness of Bashams statements, but [not] that the govern-

UNITED STATES v. FULKS

21

ment relied upon factual theories that were inconsistent at the


core of its case." Opinion 130. Fulkss sentencing to the death
penalty thus comported with due process.
IV.
Fulks understandably seeks to avoid his death sentence,
and, toward that end, counsel has striven to characterize the
jurys decision as unduly dismissive of the defenses efforts
at trial to portray Fulkss unfortunate upbringing as presenting
a good case in mitigation. As it happens, however, Fulkss
despicable crimes also presented a mighty case in aggravation, and it cannot be supposed that the jurys recommendation of death was unjust or an anomaly, in light of all the
circumstances.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED